Department of Transp. v. Neilson

• Decision Date: 14 September 1982
• Docket Number: 61042 and 61053,Nos. 61029,s. 61029
• Citation: 419 So.2d 1071
• Parties: DEPARTMENT OF TRANSPORTATION, State of Florida, Petitioner, v. William M. NEILSON, etc., et al., Respondents. HILLSBOROUGH COUNTY, Petitioner, v. William M. NEILSON, etc., et al., Respondents. CITY OF TAMPA, etc., Petitioner, v. William M. NEILSON, etc., et al., Respondents.
• Court: Florida Supreme Court

Page 1071

419 So.2d 1071

DEPARTMENT OF TRANSPORTATION, State of Florida, Petitioner, v. William M. NEILSON, etc., et al., Respondents.

HILLSBOROUGH COUNTY, Petitioner, v. William M. NEILSON, etc., et al., Respondents.

CITY OF TAMPA, etc., Petitioner, v. William M. NEILSON, etc., et al., Respondents.

Nos. 61029, 61042 and 61053.

Supreme Court of Florida.

Sept. 14, 1982.

Alan E. DeSerio, Appellate Atty., Ella Jan P. Davis, Trial Atty., and H. Reynolds Sampson, Gen. Counsel, Tallahassee, for Dept. of Transp.

Joseph W. Clark, Charles P. Schropp and Raymond T. Elligett, Jr. of Shackleford, Farrior, Stallings & Evans, Tampa, for Hillsborough County.

Bernard C. Silver, Asst. City Atty., Tampa, for City of Tampa.

Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, Miami, for respondents.

Robert A. Ginsburg, Dade County Atty., and Roy S. Wood, Jr., and Craig H. Coller, Asst. County Attys., Miami, for Metropolitan Dade County, amicus curiae.

OVERTON, Justice.

These are three petitions to review one decision of the Second District Court of Appeal reported as Neilson v. City of Tampa, 400 So.2d 799 (Fla. 2d DCA 1981). The case involves an interpretation of "operational-level" as distinguished from "judgmental planning-level" functions of government as discussed in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). Specifically, the case concerns a governmental entity's failure to properly control, by traffic control devices, and to properly design or upgrade, a multi-street intersection. We find direct conflict ¹ and have jurisdiction. Art. V, § 3(b)(3), Fla.Const. We quash the instant decision and hold that the failure to install traffic control devices and the failure to upgrade an existing road or intersection, as well as the decision to build a road or roads with a particular alignment, are judgmental, planning-level functions and absolute immunity attaches.

The complaint in this action alleged that on August 20, 1975, Patricia Neilson was driving her motor vehicle on West Interbay Boulevard, at or near its intersection with South Westshore Boulevard in the City of Tampa. As the Neilson vehicle passed through the intersection, it collided with a truck owned by Belcher Oil Company. Mrs. Neilson and her passengers, her husband and children, sustained serious injuries. The Neilsons thereafter sued Belcher Oil, the Department of Transportation, Hillsborough County, and the City of Tampa. ² As against the governmental entities involved in this action, the Neilsons alleged negligence in (1) the initial design and construction of the intersection as a roadway, (2) failing to install adequate traffic control signals and devices, (3) designing, constructing and maintaining confusing traffic control devices at the intersection, and (4) failing to warn motorists through the placement of additional traffic control devices that the intersection was hazardous.

The trial court initially dismissed the governmental entities from the suit on the ground they were immune from this type of action. The Second District Court of Appeal in Neilson v. Department of Transportation, 376 So.2d 296 (Fla. 2d DCA 1979), remanded the case to the trial court for reconsideration in view of our intervening decision in Commercial Carrier. Upon remand, the trial court again dismissed the action against all three governmental entities, finding that the conduct was a judgmental, planning-level function under Commercial Carrier. On appeal the second time, the district court again reversed, holding that the negligence alleged by the Neilsons fell under the operational level of decision making. The court said that " 'once a government decides to act, whether out of obligation or free choice, it must act responsibly and reasonably under the existing circumstances, and in accordance with acceptable standards of care and common sense.' [O]nce the planning decision was made to intersect the roads, the governmental entities could not negligently design or construct the facility with impunity." Neilson, 400 So.2d at 800 (quoting in part from Collom v. City of St. Petersburg, 400 So.2d 507, 508 (Fla. 2d DCA 1981)). In effect, the district court held that once the decision is made to have roads intersect, it is for the jury to determine whether the road could have been designed better or whether traffic control devices are necessary. We disagree, and quash the district court's holding under the circumstances of this case.

The issue here concerns claimed omissions and negligent acts which subject a governmental entity to liability because of its placement of traffic control devices, its decisions concerning the initial plan and alignment of roads, and its failure to improve or upgrade roads or intersections.

In addressing the specific question presented here, the petitioning governmental entities argue that the building of roads, the expansion or alteration of intersections, and the placement of traffic control devices are judgmental, planning-level functions which are immune from suit. The entities contend that the clear weight of the cases arising from the district courts of appeal support this conclusion. They also assert that if the Second District Court of Appeal's analysis in the instant case is adopted, governmental entities will be substantially impeded in constructing roadways unless they can afford to build "Cadillac" roadways. Further, they argue that no matter how a governmental entity builds a road, the actions taken by such entity would be subject to review by a judge or jury.

In response, the Neilsons contend that for any governmental decision to come within the category of judgmental, planning-level decision-making, such decision must be one of a broad and basic policy nature. They argue that Commercial Carrier did not immunize all discretionary decisions of governmental entities. Rather, they say that government is immune from tort liability only for those broad discretionary decisions made at basic policy-making levels. This, in their view, would include decisions as to the appropriation of money for highway construction, whether a highway is to be two- or four-laned, whether a highway is to be limited or open access, where a highway is to intersect with other streets, what type of construction materials will be used, and the route the highway will take. Apart from these types of decisions, the Neilsons assert, governmental entities are not immune from liability for discretionary decisions made at a level where these broad policies, once established, are implemented. Under this category would come decisions concerning the design of the highway in its entirety and the selection of appropriate traffic control devices. In this regard, the Neilsons say that no logical distinction exists between the initial failure to install a stop sign or to paint the word "stop" on the pavement at an intersection and the decision not to maintain or replace a missing stop sign or repaint the worn letters on the roadway surface. Finally, they contend that the district court's decision is proper due to the governmental entities' failure to comply with uniform traffic control standards and criteria in accordance with the provisions of sections 335.075 and 316.131 (renumbered 316.0745), Florida Statutes (1975). These statutory provisions, they argue, render the construction and design of the subject roadway operational-level decisions which are actionable.

In answering the question presented here it is necessary to return to our decision in Commercial Carrier. In that case, Justice Sundberg, in a thorough analysis of the law in this area, distinguished between that part of the sovereign immunity doctrine involving negligent tortious conduct waived by section 768.28, Florida Statutes (1977), and that part of the sovereign immunity doctrine identified at times as official or governmental immunity not waived by the statute. In the latter, absolute immunity attaches to "policy-making, planning, or judgmental governmental functions." 371 So.2d at 1020. The underlying premise for this immunity is that it cannot be tortious conduct for a government to govern. Our decision recognized that there are areas inherent in the act of governing which cannot be subject to suit and scrutiny by judge or jury without violating the separation of powers doctrine. We reiterate the reason for this immunity as quoted in Commercial Carrier from Evangelical United Brethren Church v. State, 67 Wash.2d 246, 254, 407 P.2d 440, 444 (1965):

The reason most frequently assigned is that in any organized society there must be room for basic governmental policy decision and the implementation thereof, unhampered by the threat or fear of sovereign tort liability, or, as stated by one writer, "Liability cannot be imposed when condemnation of the acts or omissions relied upon necessarily brings into question the propriety of governmental objectives or programs or the decision of one who, with the authority to do so, determined that the acts or omissions involved should occur or that the risk which eventuated should be encountered for the advancement of governmental objectives." Peck, The Federal Tort Claims Act, 31 Wash.L.Rev. 207 (1956).

Commercial Carrier, 371 So.2d at 1019 (emphasis added).

Commercial Carrier established that discretionary, judgmental, planning-level decisions were immune from suit, but that operational-level decisions were not so immune. In applying these principles to the facts in that case, we held that the failure to properly maintain an existing traffic control device was an operational decision and suit could be filed against the governmental entity. Because the line between judgmental, planning-level decisions and operational-level decisions is not easy to define, the four-pronged test set forth in Evangelical United Brethren Church ³ was adopted to assist in distinguishing between these separate levels of...